United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 24, 2014

Decided July 24, 2014

Before

FRANK H. EASTERBROOK, Circuit Judge

     DANIEL A. MANION, Circuit Judge

     DIANE S. SYKES, Circuit Judge

No. 13‐3364

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

RICHARD LEE HARRELL,

Defendant‐Appellant.

Appeal from the United States District

Court for the Northern District of Indiana,

South Bend Division.

No. 3:12cr45‐001

Robert L. Miller, Jr.,

Judge.

O R D E R

Richard Harrell was convicted after a jury trial of possessing child pornography,

18 U.S.C. § 2252(a)(4)(B), and sentenced to a 120‐month statutory‐maximum term of

imprisonment, id. § 2252(b)(2). He filed a notice of appeal, but his appointed attorney

moves to withdraw under Anders v. California, 386 U.S. 738 (1967). Counsel has

submitted a brief that explains the nature of the case and addresses the issues that a

case of this kind might be expected to involve, and Harrell has answered our invitation

to respond. See CIR. R. 51(b). Because the analysis in counsel’s brief appears to be

thorough, we limit our review to the subjects that counsel has discussed, plus any

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 13‐3364 Page 2

additional issues that Harrell, disagreeing with counsel, believes have merit. See United

States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553

(7th Cir. 1996).

At trial the government introduced evidence about how police found child

pornography in Harrell’s home. Officers tracked an internet protocol address associated

with downloading child pornography to a home in Warsaw, Indiana, where Harrell, his

then‐wife, and three other adults lived. Child‐pornography videos were stored on a

computer in the living room, and a forensic examination revealed that more illicit

videos had been deleted or incompletely downloaded over a period of months,

typically in the early morning hours. Harrell’s ex‐wife testified that he was often the

only person up at that time of the day. Police interviewed Harrell in his home (a

videorecording of the interview was played for the jury), and Harrell confessed to

downloading and viewing the child pornography and confirmed that he usually did so

in the early morning.

Harrell changed his story when he testified at trial, however. On direct

examination he denied downloading child pornography and suggested that another

member of the household must have been responsible. He testified that he lied to the

police in the interview because he wanted to be able to go home to his family.

Counsel first considers challenging the sufficiency of the evidence but rightly

concludes that such a challenge would be frivolous. We would affirm the judgment so

long as any rational jury could have found him guilty beyond a reasonable doubt,

United States v. Eads, 729 F.3d 769, 779 (7th Cir. 2013); United States v. Sanchez, 251 F.3d

598, 601 (7th Cir. 2001), and here ample evidence supported Harrell’s possession

conviction: the child pornography found on the computer in Harrell’s home, his

videorecorded confession, the results of the forensic examination, and his ex‐wife’s

corroboration that pornography was accessed in the early morning. See United States v.

Angle, 234 F.3d 326, 339–40 (7th Cir. 2000) (diskettes containing child pornography

found in defendant’s home); United States v. Blank, 701 F.3d 1084, 1091–92 (5th Cir. 2012)

(confession to possessing child pornography); United States v. Muhlenbruch, 634 F.3d 987,

1000–01 (8th Cir. 2011) (forensic examination corroborated defendant’s confession about

timing that he downloaded child pornography).

Counsel next weighs challenging the reasonableness of Harrell’s sentence but

correctly concludes such a challenge would be frivolous. The district court

appropriately evaluated the factors listed in 18 U.S.C. § 3553(a), including Harrell’s
No. 13‐3364 Page 3

history and characteristics (he had no history of violence, graduated from high school,

volunteered as a firefighter, and although divorced, has two young children, one of

whom is disabled), the nature and circumstances of the offense (he downloaded

between eighteen and sixty‐five child‐pornography videos), and the seriousness of the

crime (victims depicted in child pornography have “their lives . . . demolished”).

Counsel last considers whether Harrell could challenge the quality of his

representation in the district court but properly acknowledges that challenging his own

performance would be inappropriate. See United States v. Rezin, 322 F.3d 443, 445 (7th

Cir. 2003). In any event, as counsel recognizes, a claim of ineffective assistance is best

pursued in a collateral attack, through which a record can be developed. See Massaro v.

United States, 538 U.S. 500, 504–05 (2003); United States v. Stokes, 726 F.3d 880, 897–98

(7th Cir. 2013).

Harrell proposes arguing that the police prompted an involuntary confession

when they exploited his depression and concern for his family by saying, “Tell us what

we need to know so you can get back to your family.” Although a suspect’s mental

condition may be relevant to his susceptibility to police coercion, coercive police activity

is a necessary predicate to a finding that a confession is not voluntary within the

meaning of the Due Process Clause. See Colorado v. Connelly, 479 U.S. 157, 164–65 (1986);

United States v. Stadfield, 689 F.3d 705, 709–10 (7th Cir. 2012). Because the police here

made no improper threat, false promise of leniency, subterfuge, or deception that

would amount to coercion, see Stadfeld, 689 F.3d at 710, any challenge to the

admissibility of Harrell’s confession would be frivolous.

Harrell also argues that the sentencing guidelines are “severe and out of date,”

but this generalized argument about the validity of the guidelines is properly addressed

to the Sentencing Commission or Congress. United States v. Garthus, 652 F.3d 715, 721

(7th Cir. 2011); see also United States v. Aguilar‐Huerta, 576 F.3d 365, 367–68 (7th Cir.

2009).

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.